January 15, 2007
Feature Story
Deep pockets yield big awards in top verdicts of '06
By David E. Frank
Although the uncertainty of a trial's outcome prompts many a lawyer to settle his or her case, last year's largest verdicts statewide show that rolling the dice with a Massachusetts jury also can lead to a big financial pay-off.
Particularly when deep-pocketed corporate defendants are put on trial, as they were in four of the top five verdicts in 2006, some lawyers say that jurors are more willing to pull the trigger and render a big-money judgment.
The five largest verdicts in federal and state court saw plaintiffs obtain multimillion-dollar awards against well-known pharmaceutical, technology and engineering firms.
"When you're talking about representing a corporation, the defense has to be concerned about the jury thinking that a large damage award isn't going to hurt them as much as it would an individual," says Boston lawyer Robert M. Higgins, who received the second largest verdict in 2005 — at $23.4 million — in a medical-malpractice case.
But Robert W. Norton of Quincy, who along with Stephanie M. Dooley obtained the biggest personal-injury verdict of the year against Massachusetts-based Raytheon, counters that when an in-state corporation is being sued, plaintiff's counsel actually must deal with the opposite phenomenon.
"I felt as if we had to convince the jury that it was OK to find against an in-state employer because I sense jurors, more and more these days, realize there are repercussions when they enter a big verdict against a local corporation," he says. "Years ago, there may have been an us-against-them mentality, but today it's changed because so many people have money invested in 401Ks or know others affiliated with a corporation."
During empanelment, Norton recalls that at least five or six jurors were excused from service after it was revealed that they had friends or family members with Raytheon connections.
"I think suing a large corporation can still be a plus, but it's clearly not as beneficial unless the corporation is truly from out of state," he remarks.
Notwithstanding the company's Massachusetts ties, a Suffolk County jury handed Norton's client $7.95 million, the fourth largest award of the year.
And while the average of the top five dollar figures in 2006 was down slightly from 2005, the numbers were still higher than they have been in any other year since Lawyers Weekly began tracking verdicts in 1995.
The largest outcome was a $65 million award entered against drug-giant Eli Lilly and Co. In that case, a federal jury found that the company had infringed on patents licensed by a small bio-technology business in Cambridge.
And of particular note was a $36.7 million verdict in a Norfolk Superior Court breach-of-contract case against Clare, Inc., which is believed to be the largest state court jury award in Massachusetts history.
"The clerk in Norfolk County told us that it was the largest jury verdict ever in Norfolk County, and none of us here are aware of anything larger," says Jeffrey E. Francis of Boston, who along with Larry L. Varn represented the plaintiff, LoJack Corp.
Patrick T. Jones, past president of the Massachusetts Academy of Trial Attorneys, says that while the commonwealth's juries historically have been reluctant to offer large awards, the cases on last year's list demonstrate what can happen when things go right for plaintiffs pitted against deep-pocketed defendants.
"There's always a risk [in] going to trial, but these cases show that if you've got a strong case with clear and specific damages, the result can be a big number," he notes.
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Top Verdicts of 2006
1. $65 million (Patent)
Ariad Pharmaceuticals Inc., et al. v. Eli Lily and Co.
U.S. District Court
Date of verdict: May 4, 2006
Plaintiffs’ counsel: Lee Carl Bromberg, Kerry L. Timbers and Meredith L. Ainbinder, Bromberg & Sunstein, Boston; Leora Ben-Ami, Patricia Carson and Thomas Fleming, New York
Status of verdict: Several post-judgment motions pending
It is not every day that a lawyer puts a Nobel Prize winner on the witness stand.
But for the lawyers representing Cambridge biotechnology company Ariad Pharmaceuticals Inc. in a patent-infringement case, they had the opportunity to call three such prize winners.
"When it came time to put those witnesses on the stand, it certainly wasn't very difficult to convince the members of the jury that they were experts in their field," recalls lawyer Lee Carl Bromberg. "When jurors hear that a person has won a Nobel Prize, I think they all understand what that means."
And with a complicated dispute concerning allegations that defendant Eli Lilly had infringed on a patent covering methods of treating human disease by regulating NF-(kappa)B cell-signaling activity, the need to have the Nobel Prize winners explain what it all meant was particularly important.
"It's kind of like the brass ring for a trial attorney to be able to take a difficult subject matter like this and make it comprehensible to a lay jury," Bromberg says.
Bromberg, who won a $20.7 verdict in a federal trademark case in 2005, is clearly up to that challenge.
"I've always been a believer in the jury system and a very strong proponent of it, but, boy, am I ever now with these two cases back to back," he says.
The average witness in the Ariad case, he says, had a Ph.D. in chemistry, biochemistry or molecular biology.
"My biggest concern coming into this was making this very complicated information reachable to a jury that would not have the technical training of the people in the field," he remembers. "There were some highfalutin witnesses on the stand for both sides, and the name of the game was to make it possible for the jury to be able to follow the bouncing ball."
Lawyers for Eli Lilly argued that the company had already started the process of developing its product when the plaintiffs filed their patent applications.
"Even though [the defendant's] own documents showed that they made use of the inventions that are covered by this patent, their position at trial was that they were developed independently," Bromberg says.
After deliberating for 20 hours, the jury sided with Ariad, awarding the company $65 million — which reflected a percentage of the money Eli Lilly had made off of the drug.
2. $36.7 MILLION (Breach of contract)
LoJack Corporation v. Clare, Inc.
Norfolk Superior Court
Date of verdict: Feb. 8, 2006
Plaintiff’s counsel: Larry L. Varn and Jeffery E. Francis, Sullivan & Worcester, Boston
Status of verdict: Reduced by judge to $4 million; both sides have appealed
In a trial that pitted two well-known Massachusetts companies against each other, a Norfolk Superior Court jury returned an historic verdict in favor of Westwood-based LoJack.
The jury found that Clare Inc., a company based in Beverly, had breached its contract with LoJack after agreeing in 2000 to develop and produce integrated circuits and module assemblies for a next-generation version of wireless tracking devices.
There was only one problem: The devices did not work.
"We were able to establish to the jury that what Clare had developed after multiple years and a lot of effort and help from LoJack was a unit that was effectively deaf and unusable," explains LoJack co-counsel Jeffery E. Francis. "It couldn't receive within the frequency which LoJack transmits and would melt within a minute or two of running."
Francis says the biggest challenge at trial was dealing with a counterclaim brought by Clare, which claimed that LoJack had prematurely backed out of the contract and sought to recover costs it had sunk into the project
"They had a substantial counterclaim against us, and in a tricky technology case my concern was that the jury might get lost in all of it," he remarks. "The worry was that the jury was going to look at this as a business dispute between two large companies and not care enough to figure out who was at fault."
But that would not be the case. The jury awarded LoJack more than $36 million to compensate the company for the money it had paid to retain another firm to develop the unit and for the higher interim product costs it had incurred.
With a jury made up of three lawyers, Francis credits the group with being able to figure out some of those complicated issues.
"We did our best to make it simple, but we knew that the technology component of the case would be a challenge and were happy to be able to get this kind of jury," he notes.
Despite the verdict, however, Superior Court Judge Elizabeth B. Donovan granted a motion for judgment notwithstanding the verdict and reduced the sum to $4 million after finding the jury's award for lost profits was unsupported by the evidence.
3. $15.1 MILLION (Wrongful death)
Rafuse v. Stryker
Middlesex Superior Court
Date of verdict: June 16, 2006
Plaintiff’s counsel: Michael L. Altman and Alissa L. Poynor, Altman, Riley, Esher, Boston
Status of verdict: Several post-trial motions denied by trial judge on Nov. 29; defendant has filed notice of appeal
When Linda Goudey was found strangled to death in her car in October 1993, her family waited for her killer to be brought to justice.
When the criminal investigation failed to yield an indictment, the victim's mother turned to a civil court in an unprecedented wrongful-death lawsuit against her daughter's former boyfriend, Dr. Timothy Stryker.
And after battling for nearly a decade and eventually obtaining access to the prosecution's file, the case was finally presented to a jury, which awarded a $15.1 million judgment against the doctor.
When it came time for trial, plaintiff's lawyer Michael L. Altman says it was a matter of putting everything together for the jury.
Not having DNA, a confession or any other "smoking-gun" piece of evidence, Altman, a former prosecutor, knew he would have to convincingly tie together the circumstantial evidence, which included a jacket — worn by the victim shortly before her death — recovered by police in the doctor's home.
"My closing argument was my opportunity to piece together all the strands of circumstantial evidence to help the jurors see how everything fit together and convince them that he did it," he says.
While the jury's decision obviously means nothing in the criminal context, Altman thinks that if the case had been presented during a murder prosecution, the doctor would have been found guilty.
"The one thing [this] verdict tells me is that if this had been a criminal jury, they would have convicted under the beyond-a-reasonable-doubt standard," he says. "When a jury is somewhat conflicted about the evidence and starts approaching the 50-50 point, in my experience what you find is a lower verdict where people end up with a conclusion that, 'He did it, but let's not hit him with a big verdict because we have a lot of disagreement,'" adds Altman.
But in retuning such a large amount, the jury was saying loud and clear that it was overwhelmingly convinced the doctor was responsible for Goudey's death, Altman states.
4. $7.95 MILLION (Negligence/personal injury)
Hathaway v. Raytheon Engineers and Constructors, Inc.
Suffolk Superior Court
Date of verdict: April 7, 2006
Plaintiff’s counsel: Robert W. Norton and Stephanie M. Dooley, Giarrusso, Norton, Cooley & McGlone, Quincy
Status of verdict: On appeal
When a Suffolk Superior Court jury was asked to decide whether an engineering company was liable for the serious injuries suffered by a union bridge painter, it had to work through two completely different versions of what had happened.
By all accounts, the painter, David Hathaway, fell 25 feet to the ground while working on the upper deck of the Tobin Bridge; he landed on his head and fractured his skull.
But what was in dispute was his precise physical location at the time of the accident.
The plaintiff painter alleged that guardrails surrounding the work platform did not meet federal and state safety regulations.
Raytheon, which had been hired by MassPort to act as its technical engineer on the project, was responsible for setting up and maintaining the guardrails, according to the suit.
"There were two diverse descriptions of how the accident happened, and the case came down to whether my client was on the platform and had fallen over the railing or whether he was somewhere outside the scope of the railing's protections," co-counsel Robert W. Norton says. "If he was outside the scope, then Raytheon was probably not at fault, but if he was inside, it's a different story."
And "story" was the appropriate word. With widely varying accounts of where the painter had been working, Norton says it was clear some of the witnesses were lying.
"Someone wasn't telling the truth because the opinions and descriptions of what had happened were so strong on both sides that it could only be one way or the other," he says.
In a trial where witness credibility was critical, the most powerful testimony came from one of the painter's co-workers, according to Norton.
"His testimony was so strong; he was the reason I fought the case all these years," Norton says. "I believed him, and the jury believed him."
As for why the verdict was so large, Norton speculates that Raytheon's defense did not sit well with members of the jury.
"The defendant's position was that they had no responsibility whatsoever, and I think the jury ultimately said, 'You know what? You just can't say you had nothing to do with this,'" Norton suggests. "My argument was, 'Wait a second, you were hired to make sure the contract was fulfilled, and you just don't put your hands up and say, "That's not our responsibility."'"
5. $7.52 MILLION (Negligence)
O'Meara v. Argenbright Security, Inc.
Suffolk Superior Court
Date of verdict: Jan. 30, 2006
Plaintiff’s counsel: Benjamin R. Zimmermann, Sugarman and Sugarman, Boston
Status of verdict: On appeal
In a case in which a flight attendant successfully sued a company for injuries she sustained while preparing a plane for flight, a defendant's agreement to admit to liability and only fight the case on damages significantly changed the dynamic of the trial.
"On one hand, it was helpful because we didn't have to worry about liability, but on the other hand we didn't have a liability hook to hammer away at so it was a calculated risk on both sides," notes the flight attendant's lawyer, Benjamin R. Zimmermann. "The defense looked reasonable by not choosing to fight the liability fight, which made sense given the nature of the accident. This was clearly an incident that should never have happened."
That incident occurred in 1998 when the 31-year-old flight attendant was preparing the galley of a small commuter plane parked on an airport tarmac. At the time, an employee of the defendant was towing a chain of mail carts when one cart detached and crashed into the plane.
The impact threw the flight attendant into the armrest of a passenger seat and then to the floor, causing serious injuries to her neck, back and hip.
While both sides presented the jury with expert testimony, Zimmermann says the flight attendant benefited from being able to call her treating physician to the stand, who by the date of trial had examined her more than 50 times.
"It's kind of hard to get that kind of familiarity with a patient when you're a hired expert. And of all the experts who testified, the jury obviously picked the one who was most familiar with the patient," he observes. "I think the defense fairly said this was someone who was just going to bat for his patient. But from our perspective, we had a doctor who saw the injuries, believed in them and testified consistent with that."
Zimmermann adds that a great deal of evidence was presented during trial about his client's employment history, which helped show that she was a hard worker not prone to taking time off.
"She had a history of always working since she was a teenager and had never tried to get out of work," he says. "We demonstrated that she had been injured before but had always gone right back to work — and I think that resonated with the jury."
6. $5.95 MILLION (Criminal)
($8.4 million with interest)
Getz v. Shapiro
Norfolk Superior Court, No. 03-00439
Date of verdict: Sept. 14, 2006
Plaintiff's counsel: Adam R. Satin and Suzanne C.M. McDonough, Lubin & Meyer, Boston
The plaintiff, a mentally disabled woman with a history of mental, emotional and intellectual challenges, was sexually assaulted by the defendant cantor, who was a member of the clergy at the synagogue attended by the plaintiff and her family. The defendant admitted to having sexually assaulted the plaintiff, but argued that the plaintiff's condition was essentially unchanged from her baseline. The plaintiff's expert testified that the plaintiff's mental condition and limitations caused her to re-experience the trauma over and over again and that she obsessed about the assault every day.
7. $5.5 MILLION (Motor vehicle negligence)
Levrault v. Carter
Fall River Superior Court, No. 03-00714
Date of verdict: May 9, 2006
Plaintiff's counsel: Karen A. Alegria and Brian R. Cunha, Brian Cunha & Associates, Fall River
The plaintiff was a passenger in a vehicle operated by the defendant, who testified that he was traveling at 65 mph. The plaintiff claimed the defendant was traveling 80 mph when he lost control of his vehicle, causing it to strike a guard rail. The plaintiff was thrown from his seat and struck his head on the steering wheel, which caused him to sustain a spinal cord injury.
8. $3.51 MILLION (Medical malpractice/products liability)
($6 million with interest)
Parilla v. Arrow International, et al.
Suffolk Superior Court, No. SUCV2000-3259
Date of verdict: March 23, 2006
Plaintiff's counsel: James A. Swartz, Swartz & Swartz, Boston
The plaintiff suffered an air embolism resulting in brain damage when components on his cardiac introducer disconnected. The plaintiff had undergone an aortocoronary bypass and an "Arrow Walrus" introducer was inserted into his jugular vein. When the plaintiff was being moved post-surgery, a nurse noticed that the introducer's sheath had separated from the hub assembly. Allegations against the product manufacturers included claims that they continued to market/sell the two-piece design, despite knowledge of prior separations leading to injuries, and further failed to warn of the hazards inherent in the two-piece design.
9. $3.5 MILLION (Medical malpractice)
($4.8 million with interest)
Vincent v. Sasmor
Essex Superior Court, No. 2003-492
Date of verdict: June 2006
Plaintiff's counsel: William J. Thompson and Kristen A. Johnson, Lubin & Meyer, Boston
The plaintiff had to have her breasts removed after a failed breast-reduction operation. A plastic surgeon was found negligent in botching the surgery and failing to provide the victim with sufficient information about the risks. It was the plaintiff's second breast-reduction procedure. The first operation at a Montreal hospital used a different technique where the doctors preserved blood flow from the top part of the breasts and removed tissue from the bottom, which was routine at the time. In the second procedure, the tissue was cut from the top and preserved blood flow from the bottom.
10. $2.62 MILLION (Negligence & tort)
Tedeman v. Boston Higashi School, et al.
Suffolk Superior Court, No. 02-1545
Date of verdict: Nov. 17, 2006
Plaintiff's counsel: Lisa G. Arrowood, Nicholas B. Carter and Raymond P. Ausrotas, Todd & Weld, Boston
An autistic child had been physically abused at a private school for autistic children. The jury found that the school's former executive director, senior administrator and former supervisory teacher were negligent in failing to prevent harm to the child, who was a residential student at the school. The jury found the school's medical director liable for failing to detect and prevent the injuries, which included cigarette burns, welts and abrasions. The jury also found a former teacher liable for conspiring to inflict injury and for causing emotional distress.
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